Advertising and Solicitation

A Philadelphia personal injury law firm has sued an out-of-state competitor in Pennsylvania federal court, claiming that its TV, billboard and on-line ads reaching the Philadelphia area are false and misleading, violating the Lanham Act and constituting unfair competition.

The case is a reminder that the ethics rules and disciplinary action aren’t the only exposure lawyers might have to a claimed violation of the limits on advertising legal services.

A widespread practice?

The complaint against the Orlando-based firm, Morgan & Morgan, says that its ads “mislead the consumer that [Morgan & Morgan and its lawyers] actively litigate claims in Pennsylvania when in fact their representation of personal injury claims is nonexistent or minimal.”

The complaint claims that the lawyers in the ads are not licensed in Pennsylvania, and it is alleged that Morgan actually refers all or substantially all the cases generated from its Philadelphia-area ads to other lawyers and firms.

The plaintiff, Rosenbaum & Associates, alleges that Morgan’s ads contain statements like “We’re all here for you,” and “Our family is here for your family,” falsely leading Philadelphia-area consumers to believe that Morgan will handle their claims.

Morgan has not yet answered the complaint.

Plaintiff-side personal injury firms with a national footprint often seek clients beyond their home turf via ad campaigns, referring the leads they get to lawyers and firms licensed to handle them, in return for part of the contingent fee.

However, as cited in the complaint, Pennsylvania ethics Rule 7.2, unlike the analogous Model Rule, prohibits advertising that is “a pretext to refer cases obtained from advertising to other lawyers.” (My home state of Ohio, similarly prohibits the practice of soliciting clients solely for the purpose of referring them elsewhere. A handful of jurisdictions require disclosure when an advertising lawyer intends to forward cases to another lawyer to handle.)

The times they may be a-changing

The rules governing lawyer advertising are potentially in a state of flux. Online service- and referral-providers like Avvo and LegalZoom are working on several fronts to alter the landscape, including by seeking to change ethics rules that might limit their ability to market and carry out their operations.

The Association of Professional Responsibility Lawyers has two proposals on the table (2015 and 2016) that would streamline the ABA’s Model Rules on advertising and, if adopted by states, would reduce regulations that some see as unwarranted interference in marketing legal services to consumers.

But in the meantime, just to add to the mix, be aware that regulatory or disciplinary action is not the only way that potential violations of the advertising rules might be addressed.

Indeed, although the complaint against Morgan cites Rule 7.2 of the Pennsylvania Rules of Professional Conduct, the claims for relief are solely based on alleged violations of the federal Lanham Act’s prohibition against false advertising, and the parallel state common-law ban against unfair competition.

That’s worth remembering as you navigate the legal advertising landscape.

That may be the trend of the future in Biglaw, but a much more modest marketing effort recently landed an Ohio lawyer in disciplinary trouble.

No Justice, no peace?

According to the opinion, from 1981-1997, the lawyer in question practiced with another attorney, who eventually became (and continues to be) a Justice of the Ohio Supreme Court. Fast forward to 2015. With the permission of the Justice, the lawyer began using their old firm name, including on business cards, and hung a sign outside the office saying “O’Neill & Brown Law Office (Est. 1981).”

That only lasted for a few weeks before the local bar association began investigating. After the disciplinary authorities advised the Justice that the sign violated Ohio ethics rules, the Justice instructed the lawyer to remove his name from the sign, and eventually the lawyer did so.

False and misleading

The Ohio Supreme Court (with the Justice in question not participating) agreed with the Board of Professional Conduct that the firm name on the sign and business card, and the reference to the firm having been established in 1981 were false or misleading communications that violated Ohio’s version of Model Rule 7.1. The court also found a violation of Rule 7.5(c), which prohibits using a judge’s name in a firm name or other firm communication, unless the judge regularly and actively practices with the firm.

By a 4-3 vote, the court imposed a two-year stayed suspension on the lawyer. A significant aggravating factor contributed to the sanction: this wasn’t the lawyer’s first rodeo — he’d been disciplined several times before, according to the opinion, including a previous suspension for threatening a judge who served as chair of the local bar grievance committee. But in mitigation, the court noted that his conduct “did not involve the provision of legal services,” that no clients were harmed, and that the Justice participated in the decision to use the “O’Neill & Brown Law Office” name on the sign.

The three-judge minority would have imposed an “indefinite” suspension, which in Ohio is a term of at least two years.

Just last month, we wrote about a North Carolina draft proposal that would ease the way via its ethics rules for Avvo and other on-line legal services to operate there. Now, after a joint opinion from three New Jersey Supreme Court committees, the Garden State has turned thumbs down on such law platforms, citing issues including improper fee-sharing and referral fees.

Nix on Avvo, LegalZoom, Rocket Lawyer

The joint opinion bans participation in Avvo’s programs because of the “marketing fees” it collect from lawyers in exchange for participating in two of its offerings: “Avvo Advisor,” in which clients talk to lawyers for 15 minutes for $40, with Avvo keeping $10; and “Avvo Legal Services,” where clients pay a flat fee to Avvo for access to affiliated lawyers, and then Avvo pays the lawyer net of its own fee.

The committees found that this arrangement violates New Jersey’s version of Model Rule 5.4(a), barring fee-splitting with non-lawyers, and it mattered not that Avvo called its cut a “marketing fee”: irrespective of its label, said the committees, “lawyers pay a portion of the legal fee earned to a nonlawyer; this is impermissible fee sharing.” In addition, said the committees, these payments signal a “lawyer referral service,” and payment of an “impermissible referral fee” under New Jersey’s Rules 7.2(c) and 7.3(d).

Icing the cake, the committees also raised a trust account issue, saying that Avvo’s practice of holding the lawyer’s fee until the conclusion of the matter violates the attorney’s duty to maintain a registered trust account and to hold client funds in it until the work is completed.

Avvo wasn’t the only on-line platform tagged — Rocket Lawyer and LegalZoom also were placed off-limits to New Jersey lawyers, but for a different reason. While they do not require payment from lawyers to participate, and do not share the clients’ monthly subscription fees with lawyers, Rocket Lawyer and LegalZoom are “legal service plans” that have not been registered with or approved by the New Jersey Supreme Court, said the committees. That places them outside the pale, even while not violating the fee-sharing prohibition.

A notice to the bar from the supreme court’s administrative office accompanied the joint opinion, listing the 46 state-approved legal service plans, including those offered through unions and government agencies.

What next?

As we’ve noted, the ABA’s Futures Commission sees the continuing onslaught of on-line platforms as something that is here to stay. Nonetheless, this New Jersey ethics opinion joins other cautionary or negative ones issued by regulators in Ohio, Pennsylvania and South Carolina. Against that backdrop, North Carolina’s recent consideration of rule changes may appear to be the outlier (although an Oregon state bar association task force also recently recommended ethics rule amendments that would be friendly to on-line service legal platforms).

Avvo responded to the New Jersey opinion, telling the New Jersey Law Journal that it is “attempting to address the pressing need for greater consumer access to justice, and we will continue to do so despite this advisory opinion.”

Will market pressure become a tsunami that will eventually sweep legal ethics considerations away? It may take awhile to tell, but until then, look for more ethics opinions to come out with differing views, potentially creating a patchwork of inconsistent state approaches. We’ll be watching with great interest.

Avvo Legal Services has been meeting with North Carolina bar regulators, resulting in a draft proposal that would amend several legal ethics rules and make it easier for Avvo to operate in the Tar Heel State, according to Prof. Alberto Bernabe, a Chicago law professor who has seen some of the relevant documents, and blogged about them last week.

Ethical problems?

Several state legal ethics opinions have recently found client-referral services using an Avvo-like model to be ethically problematic, including opinions from regulators in Pennsylvania, South Carolina, and my home state, Ohio. Rule revisions in Florida now pending for approval by the state supreme court there likewise call aspects of the model into some question.

Some of the identified ethical issues raised by Avvo-like referral services, as identified by various ethics opinions are:

the company — and non-lawyers — control significant aspects of the attorney-client relationship, including functions that can constitute the practice of law (see Model Rule 5.5(a));

the structure can interfere with the lawyer’s exercise of independent legal judgment on behalf of the client (see Model Rule 5.4(c));

the way the fees are managed could constitute or invite commingling of clients’ funds and lawyers’ funds (see Model Rule 1.15(a));

the fee structure makes it difficult to comply with the duty to refund unearned fees at the end of the representation (see Model Rule 1.16(d));

a model where the lawyer is paid only after the representation is concluded makes the fees contingent on the outcome, which can violate the prohibition on contingent fees for certain kinds of cases (see Model Rule 1.5(d));

receiving and holding client funds paid in advance may violate the lawyer’s duty to hold those funds in a trust account (see Model Rule 1.15(c));

although part of the fee paid by the client and kept by the company may be designated as a “marketing fee,” the fact that such fees are calculated as a percentage of the full fee makes the arrangement likely to be impermissible fee-splitting with a non-lawyer (see Model Rule 5.4(a));

the business model can threaten the confidentiality of the lawyer-client relationship (see Model Rule 1.6).

North Carolina considers amendments

In light of these issues, Avvo has tried to allay concerns, including by saying that its model actually comports with ethics rules, and that it is providing advertising that is protected by the First Amendment. (A recent Georgetown Law Journal article by Prof. Bernabe details Avvo’s arguments.)

According to Prof. Bernabe, North Carolina may now be considering a different regulatory approach: amending its lawyer conduct rules to “make it acceptable for lawyers to participate in services like Avvo.”

Documents he has seen include a proposal to amend the fee-splitting rule to permit payment of a portion of the lawyer’s fee to an on-line platform if the amount is a reasonable charge for administrative or marketing services and there is no interference with the lawyer’s independent professional judgment.

Another proposed comment amendment would allow lawyers to participate in Avvo-like rating services without fear of being held in violation of the prohibition against giving something of value in exchange for a recommendation of employment. (See Model Rule 7.2(b).)

Yet another amendment would allow the company to keep the client’s payment until the end of the representation, imposing on the lawyer the obligation of ensuring that such “intermediaries” “adequately protect client funds” — instead of placing such advance payments in the lawyer’s trust account.

Brave New World

Although nothing is certain yet, and the documents that Prof. Bernabe describes are certainly preliminary and might be incomplete, the path that North Carolina appears to be contemplating significantly departs from the road that bar regulators in other jurisdictions have so far taken. Whether acquiescing to market trends — even ones that seem to be irresistible — is in the true best interest of legal consumers and the legal profession remains to be seen.

Based on a perceived need to “simplify and modernize” lawyer advertising rules, the Commonwealth of Virginia’s supreme court has adopted a new set of regulations that will make it easier for lawyers there to market their services. The slimmed-down rule, effective July 1, will consist of a single provision that bars false or misleading communications, plus a revised rule on soliciting clients.

Trimmed-down rules

The new Virginia regulation pares its Rule 7.1 down to two sentences: one prohibiting “false or misleading” communications about the lawyer or the lawyer’s services; and one defining “false or misleading.”

The changes jettison separate former rules on law firm names and communicating practice specialties, moving those subjects to a few succinct comments in the revised Rule 7.1.

The revised Rule 7.3, on soliciting clients, deletes a former provision that completely barred in-person solicitation of clients in personal injury and wrongful death cases, and now permits all in-person solicitation except when it involves “harassment” and the like, and when the prospective client has informed the lawyer that it’s unwelcome. The Virginia rule gives lawyers more lee-way than does Model Rule 7.3.

Less is more…

The new Virginia rules are patterned on the comprehensive proposals offered in 2015 and 2016 by the Association of Professional Responsibility Lawyers, which has urged the ABA to retire most of the Model Rules on lawyer advertising. The Old Dominion is the first jurisdiction to embrace that approach.

In the ABA/BNA Lawyer’s Manual on Professional Conduct, the chair of the APRL committee that originated the revamp proposal, Mark Tuft, is quoted as saying that reacting to new modes of advertising like Facebook and Snapchat with more regulation is counterproductive.

“Virginia is the first state that has recognized that greater regulation in an effort to respond to advertising in the electronic age is not the way to go,” Tuft told the Lawyers’ Manual.

(For more comment on the Virginia rule reboot, see John Marshall College of Law Professor Alberto Bernabe’s recent blog post: he questions whether the term “misleading” can be — well, misleading. And Memphis lawyer Brian Faughn (who’s also an APRL board member) weighs in as well.)

New Model Rules — maybe

In response to the APRL’s proposals, the ABA’s standing Ethics Committee convened a working group to review the call for an advertising rule revamp; the working group plans to make its recommendations to the Ethics Committee next month, according to the Lawyers’ Manual.

The ABA’s deliberations are at their beginning stages, and it would take some time before any changes made their way into the Model Rules on advertising. And from there, state supreme courts would need to carry out their own vetting processes before possibly adopting any ABA model into a state’s lawyer conduct rules.

But following Virginia’s example, it is possible that states won’t necessarily wait for the ABA, and instead might consider — or even embrace — the APRL’s approach directly.

Is it good for the profession?

The way we market our legal services is a subject that can generate strong opinions — but however you feel about it, lawyer advertising is here to stay. (Bates v. State Bar of Arizona, 433 U.S. 350 (1977).) The public now gets its information about legal services in a multitude of ways that were never dreamed of in 1983, when the ABA promulgated its Model Rules. The current rules in most jurisdictions are cumbersome and over-complicated, yet do nothing to make lawyer marketing dignified or in keeping with a learned profession. (For example, how about putting your firm advertising on a condom package? Or calling yourself “The Gorilla“?) We might as well move toward a streamlined set of regulations that will at least make it easier to communicate with the public about what we have to offer.

LinkedIn last week announced a “rethinking” of its endorsement feature, first launched in 2012. Starting with its mobile app, the service says it has “improved targeting,” so people looking at your profile will see the endorsements for you that are most relevant to them. Coming on the heels of this development, a new Ohio ethics opinion reminds us that we should be monitoring endorsements and other kinds of testimonials to ensure they are within ethical bounds.

LinkedIn endorsements — power of suggestion

According to LinkedIn (which has achieved near-universal penetration of the lawyer user market), more than 10 billion endorsements have been shared on its platform in the last four years. For the uninformed, in LinkedIn-speak, an “endorsement” results from one of your connections clicking a link on your profile page, saying that you have “skill” in a list of areas that you have created and pre-set. For instance, 50 people might say that you are skilled in “legal research,” and their little profile pictures (if they have them) are arrayed next to the endorsement.

Apparently, LinkedIn (which was acquired this summer by Microsoft) will now harness the power of its millions of users to calculate which of your skills would be most relevant to someone searching for you.

Clearly, endorsements can spotlight your particular accomplishments and skill set, but of course they come with some ethics considerations to be aware of.

Trust, but verify

First, you are responsible for monitoring testimonials and reviews of clients that are posted on websites that you control, as Advisory Opinion 2016-8, issued October 7 by the Ohio Supreme Court’s Board of Professional Conduct points out.

The Board said that websites that permit clients and others to “endorse” a lawyer are advertisements, and lawyers must ensure that they comply with the Buckeye State’s versions of Model Rules 7.1 and 7.2. In particular, “false, misleading, or non-verified testimonials in the form of client comments or endorsements should be removed by the lawyer when he or she has control over the content of the profile.” (Ohio’s rule imports from its prior Code of Professional Responsibility the prohibition on claims that are nonverifiable, i.e. not capable of being factually substantiated.)

So, if you have listed yourself on your LinkedIn profile (which you do control) as having skill in “Tax Law,” and a client “endorses” you for that skill, and you indeed have that skill, you presumably are within the bounds of good ethical practice. (Don’t scoff at this seemingly-self-evident proposition. Some lawyers in South Carolina got in ethics trouble when their marketing company set up a website that claimed skillsets that they didn’t have.)

But if you set up your LinkedIn skill section to invite endorsements for being the “World’s Greatest Corporate Advisor,” that presumably would not be ethical, at least in Ohio, since such a claim would be non-verifiable. And if you set up the section to claim skill in tax law but, like me, barely got through your law school tax course (thanks for the courtesy C+, Professor Lou Geneva), then you are definitely outside the bounds.

Second, if you accept endorsements and always “endorse back” the person who has endorsed you, you should think about your state’s version of Model Rule 7.2(b), which says that “A lawyer shall not give anything of value to a person for recommending the lawyer’s services…” with some non-relevant exceptions. If you make your own endorsement contingent or conditional on receiving one in return (or vice versa), then you would potentially run afoul of Rule 7.2(b). Quid pro quo endorsements are obviously ethically suspect, as my St. Louis-based ethics friend Michael Downey points out in this 2013 interview.

Know the rules of your road

LinkedIn endorsements are optional — I simply haven’t set up my own profile to accept them, for instance. But if you like endorsements for their potential to inform people about you and your skills, be aware of your jurisdiction’s rules and ethics opinions on the subject, and use endorsements wisely.

Avvo has a First Amendment right to use a lawyer’s publically-available information to generate advertising revenue for itself, the district court for the Northern District of Illinois held on September 12.

then, Avvo collects a fee from lawyers to allow them to put ads for their practices on the profile pages of lawyers who don’t pay the fee — and the lawyer profiles where the paid ads appear are those of head-to-head competitors;

then, if you are the target of this shake-down tactic, you can pay a fee to keepAvvo from putting ads for your competitors on your profile page.

Nice, right?

“Non-commercial” speech

And it’s all protected by strict constitutional scrutiny as non-commercial free speech, said the district court, in dismissing the putative class action of an Illinois lawyer who said that Avvo’s gambit violated state law by using his identity for commercial purposes without his permission.

In granting Avvo’s motion to dismiss, the district court said that

[T]o hold otherwise would lead to the unintended result that any entity that publishes truthful newsworthy information about individuals such as teachers, directors and other professionals, such as a newspaper or yellow page directory, would risk civil liability simply because it generated revenue from advertisements placed by others in the same field.

The court viewed the Avvo site as a mere directory, and analogized it to Sports Illustrated magazine: just like the magazine has editorial content plus ads, the Avvo site has non-commercial speech consisting of the lawyer profiles — plus ads. The court reasoned that just as ads do not convert the entire magazine into commercial speech, Avvo’s ads do not “turn the entire attorney directory into commercial speech.”

Money train

So the Avvo juggernaut rolls on. In August, reports Bob Ambrogi’s Law Sites, “a California lawyer dropped his putative class action against Avvo after Avvo brought a motion to strike the complaint under California’s anti-SLAPP law.” Avvo has also successfully torpedoed a 2007 federal class action complaint in Washington and a suit filed in Florida that was later transferred to Washington.

Ambrogi quotes Avvo’s chief legal officer on the company’s win: “This is further validation that publishers like Avvo needn’t obtain the consent of their subjects prior to exercising their First Amendment rights,” said Josh King.

As I reported in February, Avvo has taken my Ohio bar information, found a picture of me (though it is a gorgeous one, I must say), and put up my profile, all without my permission. And there are still four ads for other lawyers on my profile page– so Avvo continues to use my data to make money for itself. No phone book or lawyer directory that I know of has Avvo’s rapacious business model. But as long as courts continue to see Avvo as a mere phone book — or worse, a magazine — it will continue to expand its empire at the expense of lawyers who won’t play along.

Lawyer-rating site Avvo is violating a state statute barring unauthorized use of “an individual’s identity for commercial purposes,” an Illinois lawyer has charged in a putative class-action complaint filed last week in the chancery division of Cook County Circuit Court.

Fee- based marketing plan

The gist of the complaint is that without any authorization or participation from plaintiff or any other lawyer, Avvo has created profile pages for 97% of the of the attorneys in the country, using publically-available data; then, Avvo’s fee-based marketing plan allows lawyers who pay a fee to put ads for their practices on the profile pages of lawyers who don’t pay the fee — and the lawyer profiles where the paid ads appear are those of head-to-head competitors.

If you are the target of this shake-down tactic, you can then pay a fee to keep Avvo from putting ads for your competitors on your profile page.

The class-action plaintiff practices family law in the Chicago area; in the complaint, she cites four family-law lawyers who practice in the same geographic area as she does, and whose ads are parked on the profile Avvo has created for her.

Free speech or misappropriation?

The theory behind the complaint is that Illinois’ Right of Publicity Act is violated when Avvo takes publically-available personal data of a lawyer — years in practice, practice areas, bar discipline history, education — and puts it to commercial use without the lawyer’s consent, by using the profile to sell advertising or marketing space to those who pay for it.

According to the on-line ABA Journal, Avvo’s chief legal officer has called the allegations in the complaint “bizarre” and “ludicrous.”

My own Avvo profile (created without my authorization) has my smiling face, my office address, lists my practice areas as “business, ethics and professional responsibility” — and has three ads from lawyers who would appear to sort of work in the same practice area as I do. One is based in Columbus (150 miles down the road from me in Cleveland), one has a tag-line that says “Need a lawyer who sues other lawyers? Call …”) and one says he is dedicated to “Fighting For What Is Right And Ensuring Our Client’s Best Interest Are Served.”

Interesting stuff, but Avvo is plainly profiting from data about me (including my glam picture) that its bots have harvested from my firm’s website and the Ohio Supreme Court’s lawyer registration rolls.

I think that’s unfair, and I hope the Illinois lawsuit survives the inevitable motion to dismiss and proceeds to discovery. I’d like to know how much money Avvo makes on this shake-down. So far, though, the odds are with Avvo in achieving dismissal of the complaint.

Score: Avvo, 2 – Profession, 0

To date, according to the ABA Journal article, Avvo has successfully fended off attacks on its business model, obtaining dismissal of a 2007 federal class action complaint in Washington, over the site’s lawyer-ranking system (I have a 6.7/10 rank — why? No client has ever ranked me on Avvo), and a suit filed in Florida and transferred to Washington before it too, was dismissed. A suit similar to the current one in Illinois was filed in San Francisco last year; a motion to strike the complaint under California’s anti-SLAPP law is pending.

Data marauding — plus

Avvo is not content to profit off your professional data; last week it announced it was going to roll out a flat-fee legal services plan — and yes, this morning my Avvo profile has an ad parked on it touting contract reviews at $149.00 per.

It may be just a matter of time before this race to the bottom results in a scenario where a client keys in a credit card number and gets legal “advice” from a robot. Technology geeks are already predicting such a future, where the lawyers “may be less J.D. than R2D2.”

It’s pretty circular for a legal blogger to write a blog post about — blogging. But bear with me: there’s a legal ethics issue in here. Thomson Reuters recently introduced a new product for busy lawyers who “do not have time to write articles,” but want to produce a blog. (Hat tip to @kevinokeefe over at Real Lawyers Have Blogs.)

Called the “Content Store” (I kid you not), Thompson Reuters promises that “we have developed thousands of articles that you may use to boost your thought leadership quotient without spending too much of your valuable time.” You can “easily search, find, purchase and download professionally-written articles on a wide variety of legal … subjects for less than it would cost to write it in-house.”

The idea is that you pay Thomson Reuters by the piece or by the year to have access to these articles, which you then push out as your own in your blog. Increased “thought leadership quotient” is supposed to result.

Lest you think that this smacks of rank copying, Thompson Reuters says that you can easily edit the articles, to “tweak, embellish, [and] customize” them. However, the bold-face slug at the top of the webpage says “I don’t have time to brainstorm blog topics, much less write the posts.” Presumably you might also be too busy to “tweak” or “embellish” your store-bought “content.”

So is this kosher?

I can think of a couple ethics rules that strongly suggest that you can’t pass off someone else’s written “content” as your own writing — even with permission. First, Model Rule 8.4(c) says that a lawyer can’t engage in dishonesty, fraud, deceit or misrepresentation. Second, to the extent that a law blog may be deemed to be a communication about the lawyer’s services, Model Rule 7.1 says that you shall not “shall not make a false or misleading communication”

Lawyers can get into trouble for playing fast and loose with the truth when it comes to identifying who wrote documents submitted to a tribunal — for instance, ghostwriting a brief and having a pro se party sign it as the party’s own. See, e.g., Ostevoll v. Ostevoll, 2000 U.S. Dist. LEXIS (S.D. Ohio Aug. 16, 2000) (agreeing that ghostwriting involves dishonesty and deceit on the part of the lawyer); Gordon v. Dadante (N.D. Ohio 2009) (“This Court will continue to strike ghostwritten submissions from any party and will, in the future, entertain motions for contempt against a party submitting ghostwritten material.”); Laremont-Lopez v. Southeastern Tidewater Opp. Ctr., 968 F. Supp. 1075 (E.D. Va. 1997) (ghostwritten pleadings constitute misrepresentation).

The same should hold true with blog content. Buying it and passing it off as your own is a form of lying.

By the way, I wrote this content myself. It took me an hour. I didn’t buy it from anyone. Hope you enjoyed it.

A Florida Bar rule blocking a personal injury law firm from stating that it specializes in mass-tort cases is unconstitutional as applied, a Florida federal district court recently held. The court enjoined the Florida Bar from enforcing its Rule 4-7.14(a)(4), which prohibits statements “that a lawyer is … a specialist, an expert, or other variations of those terms,” unless the lawyer has been certified under the Florida Bar’s certification plan or another approved plan.

The Florida Bar is perceived by many as one of the toughest jurisdictions in the U.S. when it comes to enforcing lawyer advertising rules. The Florida firm sued the bar and some of its officers after sample pages from the firm’s website, blogs and LinkedIn profile flunked the bar’s pre-approval process, which can create a “safe harbor” for such advertising.

Unconstitutional as applied

The court said that as applied, Rule 4-7.14(a)(4) of the Rules Regulating the Florida Bar would unconstitutionally prohibit the firm from saying “it specializes or has expertise in mass-tort or unsafe-product cases, or even in personal-injury cases, even though the firm undeniably has expertise in these areas.” The court also said the rule would improperly block individual lawyers of the firm from saying they “specialized” or had “expertise” in those kinds of cases even if they handled only cases of that kind, and even if the lawyer had successfully handled many such cases.

Florida’s rule is broader than the ABA’s Model Rule 7.4(d), which bars only stating or implying “that a lawyer is certifiedas a specialist in a particular field of law,” unless the lawyer has the requisite state-sponsored certification. Other state ethics rules, however, are more like the Florida bar rule. In Ohio, for example, Rule 7.4(e) proscribes stating or implying that a lawyer “is a specialist in a particular field of law” without going through the state specialty-certification process.

Central Hudson test

The Florida rule was found unconstitutional under all three prongs of the U.S. Supreme Court’s 1980 test for reviewing state restrictions on lawyer advertising, as set out in Central Hudson Gas & Electric v. Public Service Commission. Under Central Hudson, a restriction on commercial speech is valid only if:

the asserted government interest in restricting the speech is substantial;

the challenged restriction directly advances the asserted governmental interest; and

the restriction is not more extensive than necessary to serve that interest.

The Florida rule failed the test in two ways, the district court held. First, the bar failed to offer any “empirical or even anecdotal evidence” to support its assertion that a potential client would be misled into believing that a lawyer who claimed to “specialize” in an area was indeed board certified. Such evidence is required to satisfy the burden of demonstrating that the challenged regulation directly advances the government’s interest. Instead, the court held, the bar offered only speculation that clients would be misled.

Second, the court held that the restriction was overbroad, because “the Bar prohibits even truthful claims.” The bar asserted that if it were prohibited from establishing standards as a basis for claiming expertise, “lawyers would be able to self-certify and any lawyer could claim to be an expert or specialist in any field.” The court said that the plaintiff law firm in fact had undeniable “expertise” mass-tort and unsafe-product cases, but the rule prohibited it from making that true claim because there is no board certification in those narrow fields, and law firms — as opposed to individual lawyers — cannot be board-certified.

In sum, the court held, “the Bar’s ban on truthful statements about a lawyer’s or law firm’s specialty or expertise, at least as applied to websites [including blogs and social media sites], fails all tree prongs of the Central Hudson test.”

Implications for the future?

States have a considerable investment in certification programs that aim to credential lawyers in specialty areas. Given that many also have ethics rules similar to the one found unconstitutional in Searcy, will we see a spate of constitutional challenges to those rules? It is possible, but not likely. According to the plaintiff’s lawyer in Searcy, who commented for Bloomberg/BNA earlier this month, Florida stands out in the “seriousness of its enforcement of advertising rules, which makes it more likely that a lawyer will challenge a rule.”

But counting on flying under the ethics radar is no way to run a law business. So the right choice for now is to know your jurisdiction’s rule on claiming “expertise” and to comply with it — or to challenge its constitutionality.

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